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BUREAU OF 
RAILWAY ECONOMICS 

LOGAN ^™. HERSON F " ANK HAIGH DIXON 

CHIEF STATISTICIAN 

The Conflict Between 
Federal and State Regulation 
of the Railways 


Bulletin No. IS 
WASHINGTON, D, C. 
1911 


■snoffraptf 





BULLETINS OF THE 
BUREAU OF RAILWAY ECONOMICS 


1. Summary of Revenues and Expenses of Steam Roads in the 

United States for July, 1910. (Monthly Report Series, 
Bulletin No. 1.) 

2. Summary of Revenues and Expenses of Steam Roads in the 

United States for August, 1910. (Monthly Report Series, 
Bulletin No. 2.) 

3. Summary of Revenues and Expenses of Steam Roads in the 

United States for September, 1910. (Monthly Report 
Series, Bulletin No. 3.) 

4. A Comparative Statement of Physical Valuation and Capitali¬ 

zation. 

5. Preliminary Bulletin for November, 1910—Revenues and 

Expenses. 

6. Railway Traffic Statistics. 

7. Summary of Revenues and Expenses of Steam Roads in the 

United States for October, 1910. (Monthly Report Series, 
Bulletin No. 4.) 

S. Summary of Revenues and Expenses of Steam Roads in the. 
United States for November, 1910. (Monthly Report 

Series, Bulletin No. 5.) 

9. Summary of Revenues and Expenses of Steam Roads in the 
United States for December, 1910. (Monthly Report 

Series, Bulletin No. 6.) 

10. Summary of Revenues and Expenses of Steam Roads in the 

United States for January, 1911. 

11. Comment on the Decision in the Western Advanced Rate Case, 

No. 3500. (Out of Print.) 

12. Summary of Revenues and Expenses of Steam Roads in the 

United States for February, 1911. 

13. Summary bf Revenues and Expenses of Steam Roads in the 

United States for March, 1911. 

14. Summary of Revenues and Expenses of Steam Roads in the 

United States for April, 1911. 

15. The Conflict Between Federal and State Regulation of the 

Railways. 


The numbering of the monthly bulletins as a separate series was abandoned 
with the December issue. Since then all bulletins issued by the Bureau have 
been given a consecutive number only. 





The Conflict Between 
Federal and State Regulation 
of the Railways 


r373<s:> 


received ^ 

☆ JUL \ - 19U fj 

■ 4 Bureau of Conations 


Zpf OOMMER^ 






iww^ccvu t^3 f H) h % 0, i 


WASHINGTON, D. C. 
JUNE, 1911 

























dL 

I 


PREFACE. 

A recent letter from Mr. Edwin A. Pratt, the English writer 
on railways, to the Director of the Bureau of Railway Eco¬ 
nomics, says: 

“I should very much like to have for the purposes 
of a work on which I am now engaged, a few facts as to 
the nature and extent of the control exercised by the 
various States—supplementing that of the Interstate 
Commerce Commission—on the railways of your coun¬ 
try. At a meeting last night of the Political Economy 
Club, to which I was invited as a guest, a discussion was 
started on the subject during which the view was ex¬ 
pressed that the control by the States was becoming so 
oppressive that it would be difficult for the country to 
avoid being forced into government ownership of the 
railways in the proximate future, and there was a very 
interesting debate thereon. 

“ Would it be troubling you too much to favor me 
with a few details which would enable me to state the 
position clearly V 9 

In the thought that the statement prepared in response 
to Mr. Pratt’s request may be of interest to the members 
of the Bureau, it is incorporated in this bulletin. 







THE CONFLICT BETWEEN FEDERAL AND STATE 
REGULATION OF RAILWAYS. 


For convenience of reference the provisions of the Consti¬ 
tution of the United States conferring and limiting the powers 
of Federal and State regulation of railways are set forth as 
follows: 

The Congress shall have power: * * * To regu¬ 

late commerce with foreign nations and among the 
several States, * * *. Section 8, Article I. 

This Constitution, and the laws of the United States 
which shall be made in pursuance thereof, * * * 

shall be the supreme law of the land, and the judges 
in every State shall be bound thereby, anything in the 
Constitution or laws of any State to the contrary not¬ 
withstanding. Paragraph 2, Article VI. 

The powers not delegated to the United States, by 
the Constitution, nor prohibited by it to the States, are 
reserved to the States respectively, or to the people. 
Amendment X. 

No person shall * * * be deprived of life, lib¬ 

erty or property, without due process of law; nor shall 
private property be taken for public use without just 
compensation. Amendment V. 

* * * nor shall any State deprive any person of 

life, liberty or property, without due process of law, 
nor deny to any person within its jurisdiction the equal 
protection of the laws. Section 1, Amendment XIV. 

The effect of these provisions of the Constitution upon the 
power of the Federal Government and the States to regulate 
railways may be summarized as follows: 

The Federal Government exercises delegated powers only; 
all powers not expressly delegated to it by the Constitution 


6 


or prohibited to the States may be exercised by the States. 
In the exercise of its delegated powers the Federal Govern¬ 
ment is supreme, but the power of a State over any matter 
as to which power has been delegated to Congress, is largely 
determined by the question of whether Congress has exercised 
its delegated power as affecting this subject-matter. If a 
Federal law is construed as regulating the whole of any 
subject-matter as to which power has been delegated to Con¬ 
gress or if State regulation conflicts with any Federal law, 
such State legislation is void. As the Federal Government 
is constantly exercising to a fuller extent the power to regulate 
interstate commerce, the necessary tendency is to restrict the 
powers of the States. 

Under Section 8, Article I of the Constitution, exclusive 
power to regulate railway operations, practices and charges 
affecting the transportation of persons or property where, in 
the course of such transportation, State lines are crossed, is 
delegated to the Federal Government, the only restriction 
upon its power in this field being the provision of Amendment 
V that 4 4 No person shall be # * * deprived of life, lib¬ 

erty, or property, without due process of law; nor shall pri¬ 
vate property be taken for public use without just compen¬ 
sation.’’ It follows that it is not within the power of Congress 
to impose regulations which shall have the effect of depriving 
the railway company of its property without due process of 
law or of taking its property without just compensation, and 
the United States Supreme Court has held that the use of 
property, in all legitimate ways, is as much a right of prop¬ 
erty protected by the Constitution as is the property itself. 

The power to regulate commerce wholly within a State, not 
having been delegated to Congress, is reserved to the States, 
respectively, under Amendment X of the Constitution. This 
gives to each State plenary power over all commerce or trans¬ 
portation which begins and ends within its borders, subject, 
however, to the provision of Section 1, Amendment XIV, which 
provides that no State shall 4 4 deprive any person of life, 
liberty or property without due process of law; nor deny to 


7 


any person within its jurisdiction the equal protection of the 
laws.” 

As, with few and unimportant exceptions, the railways of 
the United States are engaged in interstate commerce as well 
as in intrastate commerce, it is inevitable, under our dual sys¬ 
tem of government, that questions should arise as to the exact 
location of the line separating the jurisdiction of the Federal 
Government from that of the several States. This is fre¬ 
quently illustrated by questions as to whether the effect of 
regulations imposed by State authority may be to regulate 
or burden interstate commerce. It is the duty of all of the 
courts, State and Federal, to determine questions that arise 
as to whether an act of Congress is made in pursuance of the 
Constitution of the United States; and as to whether any 
provision of a State Constitution, or any act of a State Legis¬ 
lature is in violation of any provision of the Constitution of 
the United States. The United States Supreme Court is the 
final tribunal on all questions of Constitutional construction. 

As questions as to the extent of the regulative powers, both 
of the Federal Government and of the States, are constantly 
being presented to the United States Supreme Court, the 
decisions of this court are gradually defining more sharply 
the extent of the Federal and State powers, respectively, and 
drawing the dividing line between them more clearly. The 
tendency of the decisions of this court seem to be strongly 
in the direction of the proposition that interstate railways 
must, in all substantial respects, be subject to one power, and 
the court now manifests a more decided tendency than in 
former years to hold that regulations of intrastate commerce 
which have the effect of regulating or burdening interstate 
commerce, are void as trenching upon the power delegated to 
Congress to regulate commerce among the States. There are 
some apparent exceptions to this, as in cases in which it has 
been held that, under its police power, a State may prescribe 
regulations affecting the movement of interstate commerce 
so long as such regulations only indirectly affect interstate 
commerce and do not regulate or burden it. An illustration 


8 


of this is the enactment by a State prescribing tests for color¬ 
blindness for locomotive engineers engaged within that State 
in the operation of interstate trains. 

While each State possesses exactly the same power as to 
matters within its jurisdiction as is possessed by each of the 
other States, this power has been used in as many different 
ways as there are States in the Union, with the result that 
every interstate railway, in addition to being subject to the 
regulations imposed by the Federal Government, is subject 
to a different set of regulations in each State which it 
traverses. 

Some of the States have used only a small fraction of their 
power to regulate intrastate commerce; others have endeav¬ 
ored to go far beyond it and have been kept within bounds 
only by the courts. 

State regulative power has been exercised in a variety of 
ways. In some cases specific regulations have been enacted 
by State laws, and in other cases they have been prescribed 
by commissions under power delegated by the State Legis¬ 
latures. Regulations have been prescribed covering passenger 
and freight charges, train operation, car supply, character 
of equipment and station buildings, hours of labor of em¬ 
ployees and conditions of employment, safety appliances, and 
almost every conceivable phase of railway operation. 

State acts and regulations prescribing maximum charges for 
the transportation of passengers and freight have caused much 
of the litigation between the railways and the States, and have 
frequently been held to be unconstitutional on the ground that 
the charges prescribed were so low as to be confiscatory under 
the Fourteenth Amendment, that they would deprive the rail¬ 
way of a reasonable return upon the value of its property. It is 
the contention of some able lawyers that the courts must ulti¬ 
mately go farther and hold that under the Constitution of 
the United States, just as under the Common Law of England, 
the railway cannot be deprived by legislation of just and rea¬ 
sonable compensation for each specific transportation service; 
that small profits will not justify the making of a greater 


9 


charge, and that large profits will not justify a lesser charge 
being fixed by any governmental authority. It is contended 
that the right given to the railways by the present interstate 
commerce law to make a reasonable charge for each service 
is but the legislative expression of a Constitutional right. 

In some of the States efforts have been made to prevent the 
railways from testing the validity of State regulations in the 
courts. 

Minnesota, in a freight rate act, and North Carolina, in 
passenger and freight rate acts attempted to do this by pre¬ 
scribing such severe penalties for the violation of the acts as 
to force the companies to comply therewith rather than run 
the risk of failing to prove the invalidity of the acts in criminal 
prosecutions. The Supreme Court of the United States held 
all of these acts to be unconstitutional and void. 

Alabama, Arkansas, and Missouri attempted to keep the 
railways out of the United States courts by statutes which 
provided that any corporation chartered in any other State 
which should resort to a United States court should forfeit 
its right to do intrastate business in that State. These laws 
were overthrown by the United States Supreme Court as 
denying to the foreign corporations equal protection of the 
laws. 

Section 720 of the Revised Statutes of the United States, 
provides that “the writ of injunction shall not be granted by 
any court of the United States to stay proceedings in any 
court of a State * * V’ With this provision in view, 

Virginia attempted to evade the jurisdiction of the United 
States courts by creating a Corporation Commission with the 
powers of a court and fixing railway charges by court decrees 
rather than by acts of a legislative nature. This failed to be 
sustained by the United States Supreme Court, as it was 
held that, in fixing railway charges, the Virginia Corporation 
Commission, notwithstanding its powers and its form of pro¬ 
cedure, was exercising legislative power and not judicial 
power. 

As would naturally be supposed, the States have been com- 


10 


peting with each other for the purpose of securing advantages 
of commerce within their respective borders over that of any 
other State and over interstate commerce. This rivalry has 
been strikingly manifested in laws and regulations affecting 
car service. These have generally been termed “ reciprocal 
demurrage ’ ’ laws and have been based on the false theory that 
a demurrage charge imposed by a railway bears a reciprocal 
relation to a legislative penalty for failure to provide a car 
when demanded by a shipper. 

The natural effect of such laws in times of car shortage 
would be to compel an interstate road to discriminate in favor 
of intrastate commerce in the State imposing the highest pen¬ 
alties, as against intrastate commerce in other States and 
against interstate commerce. North Carolina has gone far¬ 
ther than any other State in legislation of this character, 
having enacted a law providing that, upon failure to provide 
a car within 48 hours after demand, the railway should pay 
$25.00 for the first day and $5.00 for each subsequent day, the 
penalty for failure to provide facilities for less than carload 
shipments being $12.50 for the first day and $2.50 for each 
subsequent day. Subsequent legislation reduced these penal¬ 
ties. It may be that if a State should go to such extremes in 
this direction as to create material discriminations against, 
or impose material burdens upon, interstate commerce, such 
penalty laws would be held to be unconstitutional and void. 

It will be seen that the effect of the recent decisions of the 
United States Supreme Court and of the fuller exercise of the 
legislative powers of Congress have been to give a broad con¬ 
struction to the clause of the Constitution delegating to the 
Congress power to regulate interstate commerce and to con¬ 
fine the power of the States within much narrower limits than 
those over which many of them have sought to exercise it. 
A recent decision by United States Circuit Judge Sanborn 
of the United States Circuit Court for the District of Minne¬ 
sota, goes so far in this direction that if it shall be sustained 
by the United States Supreme Court and carried to its logical 
conclusion, it would seem to restrict the opportunities of 


11 


the States for oppressive regulation. The Legislature of the 
State of Minnesota had enacted statutes reducing passenger 
fares within that State about 33% per cent and reducing 
freight charges on certain commodities within the State about 
7.37 per cent. By orders of the Minnesota Railroad and Ware¬ 
house Commission, general merchandise freight charges on 
shipments wholly within the State were reduced by from 20 
to 25 per cent and certain specific charges on freight shipped 
from distributing points just within the borders of the State 
to other points in the State were reduced. Suits were brought 
by shareholders of the railways affected by these legislative 
acts and orders of the Commission, against the railway com¬ 
panies, the Attorney General of the State, and the Members 
of the Railroad and Warehouse Commission to prevent them 
from maintaining the reduced fares and rates on the grounds 

(1) that the orders of the Commission and the acts of the 
Legislature described, substantially burdened and regulated 
interstate commerce on the railroads of these companies, and 

(2) that their necessary effect was the confiscation of the prop¬ 
erty of the companies. Judge Sanborn found that ‘ 4 each of 
those acts and orders is violative of the Fourteenth Amend¬ 
ment of the Constitution and void.” He further found that 
“each of the acts and orders challenged has the natural and 
necessary effect substantially to burden and directly to regu¬ 
late interstate commerce, to create undue and unjust discrim¬ 
inations between localities in Minnesota and those in adjoin¬ 
ing States, and it is unconstitutional and void.” Interest in 
this decision centers in the finding last quoted above. 

In this case the companies for the first time made an effec¬ 
tive showing upon the facts as to the effect of State regula¬ 
tions upon interstate commerce and demonstrated that, al¬ 
though the regulations on their face related only to intrastate 
commerce, the effect of their application would necessarily 
be to require reductions of interstate charges. Upon this 
showing Judge Sanborn’s decision was founded on the follow¬ 
ing propositions: 

“To the extent necessary completely and effectually to pro- 


12 


tect the freedom of and to regulate interstate commerce the 
nation by its Congress and its courts may affect and regulate 
intrastate commerce, but no farther. 

“To the extent that it does not substantially burden or 
regulate interstate commerce a State may regulate the intra¬ 
state commerce within its borders, but no farther. 

“If the plenary power of the nation to protect the freedom 
of and to regulate interstate commerce and the attempted 
exercise by a State of its power to regulate intrastate com¬ 
merce, or the attempted exercise of any of its other powers, 
impinge or conflict, the former must prevail and the latter 
must give way, because the Constitution and the acts of 
Congress passed in pursuance thereof are the supreme law of 
the land, and ‘that which is not supreme must yield to that 
which is supreme.’ ” 

Charges for interstate transportation and for intrastate 
transportation on the railways of the United States are so 
intimately interwoven and are so closely interdependent that, 
should Judge Sanborn’s decision be sustained by the United 
States Supreme Court, it will substantially deprive the States 
of the power of fixing transportation charges. It would seem 
also that, if carried to its logical conclusion, it may prevent 
the States from enacting so-called “reciprocal demurrage” 
laws carrying penalties for failure to supply cars so severe 
as practically to compel the railways, in times of car shortage, 
to discriminate in favor of intrastate traffic. 

On the whole, the danger of control by the States “becoming 
so oppressive that it will be difficult for the country to avoid 
being forced into government ownership in the proximate 
future” is undoubtedly much less than it seemed to be a few 
years ago when the wave of drastic regulation was sweeping 
over the State Legislatures and commissions and their acts 
and orders had not yet been passed upon by the courts. 

Of course, as a practical matter, the powers reserved to 
the States include some which do not in any way conflict with 
the delegation to Congress of the power to regulate commerce 


13 


among the States and which may still be used to an unreason¬ 
able degree, or so as to become oppressive. 

By way of illustration, it may be mentioned that the com¬ 
missions in some of the States show a tendency to require 
unreasonable and extravagant expenditures by the railways 
in the provision of large and handsome passenger stations at 
relatively small towns and to make unreasonable requirements 
as to the maintenance of roadbed and equipment, as to the 
minimum number of employees to be assigned to the opera¬ 
tion of trains, as to the stopping of express trains at unimpor¬ 
tant stations. These powers might be exercised to an 
unreasonable and oppressive extent and it still be difficult to 
show that the results were confiscatory. 

It is possible, also, that the power of taxation may be so 
exercised by the States as to become in some degree oppres¬ 
sive. However, the exercise of this power must fall short 
of what the United States courts would find to be confiscatory, 
and it can not be so exercised as radically to discriminate 
against railway property without coming in conflict with the 
provision of the Constitution of the United States guarantee¬ 
ing the equal protection of the laws. The tendency in the 
direction of increasing taxation may be illustrated by citing 
the fact that for the fiscal year ended June 30, 1900, the rail¬ 
ways of the United States paid taxes levied under State, 
county, and municipal authority amounting to $48,332,273, 
while in 1910 such taxes amounted to $104,144,076. Part of 
this increase is to be accounted for by the increased mileage 
in 1910 as compared with 1900, but the average payments 
of taxes per mile in 1900 amounted to only $254.78 as com¬ 
pared with $435.65 in 1910, an increase in the ten years of 
$180.87 per mile or 70.9 per cent. 








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